Insights on climate research

In climate lawsuits, the winner doesn’t take it all

Climate lawsuits have recently turned into a global phenomenon. As such, they have been increasingly successful in drawing media attention. However, the narrative about their novel and combative character often eludes an inconvenient truth: they are hardly won.

The question then is, how relevant is it for a climate lawsuit to win?

Until twenty years ago, the idea to bring a government to Court for its lack of ambition on climate policy, would have sounded odd to many. Climate change was considered a rather political and technical matter, to be left to each government’s discretion.

Climate lawsuits, conversely, assume that global warming represents a matter for legal concern, as it creates obligations for those who contribute to it, and rights for its victims. With this in mind, since the early 2000s, many environmental organisations have been suing governments and companies for their failure to properly respond and adapt to climate change.

Moreover, the aims of climate lawsuits are also political in a broad sense. As with other examples of strategic litigation, they aim to use an evolutive interpretation of law as a tool to influence States’ and corporate behavior. (Ganguly, Setzer, and Heyvaert 2018) In this, climate cases are inherently different from a lawsuit between two private citizens. When social movements get to court, their ambition is not to change an individual situation or end a particular abuse, but rather to influence a government’s general attitude towards climate policy.

However, to achieve that objective, climate lawsuits don’t need to be won.

To put it clearly, a favourable judicial decision still is the most desirable outcome, as it can affect directly, and with a legal effect, a political line of action. However, Courts’ decision can influence States behaviour on climate change in more subtle and indirect ways.

Firstly, even when they leave a margin of discretion, climate lawsuits can provide progressive governments with an authoritative basis to undertake ambitious climate policies, despite their unpopularity and against the conflicting interests of powerful lobbies. For instance, in 2014, the Obama administration, faced with a republican majority in the House, could justify the introduction of a federal mitigation plan, on the basis of the Supreme Court’s decision in Massachusetts v. EPA. (Peel and Osofsky 2015)

Secondly, when they are not successful – which is, in the large majority of cases – climate lawsuits offer a forum where the most controversial legal theories and imaginative strategies can be tested and discussed.

As a matter of fact, due to their novelty, climate cases often challenge national Courts with difficult legal questions. Just to mention a few, in 2015 the Oslo district Court was asked to pronounce on the extraterritoriality of Norway’s human rights obligations. In practice, the question was whether the government, in the exercise of power over its marine territory, i.e. when authorising a project of oil excavation, should have taken into account the consequences of its own actions on the human rights of people living in other countries. In the same year, a Peruvian farmer sued Germany’s largest electricity company (“RWE”), based on its contribution to climate change. According to the claim, the company’s emissions (among others) were responsible for the melting of the glaciers near the farmer’s village of origin, and for the consequential flooding of the lake located below. Pondering the application of different possible theories of causation, the plaintiffs asked RWE for the compensation of the costs in which the village would have incurred to protect from flooding. Similarly, on the day of the last Global Climate Strike, Greta Thunberg and other young activists, claimed for the first time in Court, that climate change is a children human rights issue and a matter of intergenerational equity.

All the cases mentioned are groundbreaking, as they pursue the application of legal principles and sources that are still controversial or unsettled. On the other hand, the legal uncertainty around them often makes Courts reluctant to endorse courageous interpretations of the law. Nevertheless, as those cases increase and grow into a movement, judges have the chance to compare to one another and eventually import “foreign” theories in their own jurisdictions. In this way, the hoped political change can happen indirectly, as a result of a dialogue between courts.

Finally, even when their claims are rejected by Courts, climate lawsuits can indirectly boost change, by leading the public conversation towards important aspects of the climate crisis. The media attention on climate lawsuits seems to have increased, also due to the “rights-turn” taken by the climate judicial movement. (Peel and Osofsky 2018)

Lawyers around the world have been defending that governments, with their inadequate climate policies, are accountable for the violation of the rights to life and human dignity of their citizens. Such shift is not only in the legal but also in the communicative strategy of climate lawsuits, as their main grounds are not anymore just abstract legal thresholds, but rather coincide with the lives and dignity of real people.

Rights-based lawsuits confront the most industrialised States with some of the most urgent moral questions for our generation. They could all be summed up in one: are we violating the rights of our children and of those living in the Global South by continuing to support the fossil fuel industry?

The hope is that, as the awareness of such moral dilemma grows, and Courts accept their role in enhancing the public conversation, the political representatives will feel compelled to remedy their inaction, or else they will have to answer those questions.